UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MIRROR LAKE VILLAGE, et al., Plaintiffs, v. Civil Action No. 16-1955 (TFH) KIRSTJEN NIELSON, Secretary of the United States Department of Homeland Security, et al., Defendants. MEMORANDUM OPINION The plaintiffs in this suit are Mirror Lake Village, LLC (“Mirror Lake”), a company formed to develop a senior living community in Washington state, and seven Chinese nationals who invested $500,000 each in Mirror Lake (the “plaintiff-investors”). They are challenging the United States Citizenship and Immigration Services’ (“USCIS”) denial of the plaintiff-investors’ l-526 petitions for visas under the “EB-S” immigrant investor program, which provides visas for individuals who make qualifying investments in American companies The main issue before the Court is whether USCIS acted in an arbitrary and capricious manner by denying the plaintiff- investors’ visas on the grounds that their investments in Mirror Lake were not “at risk” as required by the applicable regulations The parties have filed cross motions for summary judgment. [ECF Nos. 18 and 21]. I. Regulatory Background The Immigration and Naturalization Act (“INA”) authorizes USCIS to issue visas to “qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise . . . in which such alien has invested . . . capital.” 8 U.S.C. § 1153(b)(5)(A). In order to qualify for visas under the “EB-S program,” as it is known, the investments must meet specific, employment-focused criteria. They must create “full-time' employment for not fewer than 10 United States citizens” or other legal immigrants. Id. at § 1153(b)(5)(A)(ii). For investments in “targeted employment areas”-rural areas or those with high unemployment_the investments must be at least $500,()00. Id. at § 1153(b)(5)(B)(ii); 8 C.F.R. § 204.6($(2). Although the statute does not define the term “invest,” implementing regulations clarify that to “invest” means “to contribute capital.” 8 C.F.R. § 204.6(e); see also 8 U.S.C. §§ 1103 (a)(l); (a)(3) (charging the Secretary of Homeland Security with the “administration and enforcement” of the INA, and giving him or her the authority to issue regulations “as he [or she] deems necessary for carrying out his [or her] authority” under the INA). According to the regulations, these contributions of capital must not be in the form of debts. See 8 C.F.R. § 204.6(e) (“A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital . . . . ”). Investors must demonstrate that they have “placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk.” 8 C.F.R. § 204.6(j)(2). In addition to the regulations, Matter of Izummi, a 1998 decision by the Board of lmmigration Appeals (“BIA”), provides further guidance on the agency’s requirement that investments be “at risk.” Matter of lzummi, 22 I. & N. Dec. 169 (BIA 1998). In Matter of lzummi, the agency upheld the denial of a Form I-526 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals